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Commentary

Inspection by Plan Participants

  1. In the case of a pension, profit-sharing or stock bonus plan (or an individual retirement arrangement) referred to in IRC 6104(a)(1)(B) with 25 or fewer participants, the application for a determination letter filed after September 2, 1974, supporting documents, and letters or documents issued by the Service after that date may only be inspected by a plan participant or his/her authorized representative.
  2. Information with regard to compensation (including deferred compensation) of any individual, as shown on Form 5302, must be deleted.

    NOTE:
    Form 5302 is obsoleted as of November 1993.
  3. When a plan with 25 or fewer plan participants files an application or annual return which shows that the number of participants has increased to 26 or more, all prior applications, or supporting documents, and other documents received or issued by the Service after September 2, 1974, will be open to public inspection regardless of the number of plan participants indicated on any prior application.
  4. When a plan with 26 or more plan participants files an application which shows that the number of participants has decreased to 25 or fewer, supporting documents relating to such application, and any other documents received or issued by the Service after the date of receipt of that application may only be inspected by a plan participant or his/her authorized representative.

    NOTE:
    Materials which were previously open to public inspection will remain open to public inspection.
  5. The application for a determination letter and supporting documents will be open to inspection by a plan participant or his/her authorized representative whether or not the application is withdrawn by the applicant and whether or not the Service determines that the plan is qualified.
  6. In dealing with questions from plan participants regarding the status of an application for termination of a plan, the participant may be advised that the application is pending. Upon completion of Service action, the participant may be advised as to whether or not the application has been approved.
  7. Questions relating to plan benefits of terminated plans should be directed to the plan administrator, who is responsible for notifying the participants of their benefits under the plan.
  8. The application for termination of a plan (Form 5310) and the determination letter issued by the Service is available for inspection by a plan participant or his/her authorized representative.

Public Inspection of Documents

  1. Any material open to inspection under IRC 6104(a)(1)(B) will be available for public inspection only upon written request.

Contents of Written Request

  1. The request, at a minimum, should contain:
    1. the name, address, Employer Identification Number (EIN) of the organization, and the plan number (if known), being inspected or copied; and
    2. the address for notification of the determination as to whether the request will be granted and/or where the copies should be sent.
  2. In the case of a plan participant (or an authorized representative) desiring to inspect material with respect to a plan of 25 or fewer participants, the requester should include written evidence of identity and a statement that the requester is a plan participant.

    NOTE:
    Requests to inspect material with respect to a plan of not more than 25 participants made by authorized representatives should also include the written authorization.
  3. Material requested for inspection should be described in reasonably sufficient detail so that Service personnel can locate it without the necessity of contacting the requester for further explanation or information.
  4. if a requester desires to inspect the material at a particular District Director's office, it should be stated in the request. If not, it will be assumed that the inspection will take place at the office where the request was sent.
  5. If an organization has more than one application for a determination letter open to public inspection under IRC 6104(a)(1)(B), only the most recent application and supporting documents will be open for inspection unless the request states otherwise.
  6. If a requester only desires copies, it should be stated in the request.

    NOTE:
    The request for copies need not be in writing if made at the time of the inspection. Any copies furnished will be certified upon request. Additional non-profit website relevant to 401k plans includes: www.iraeasy.com.

Where to Send Requests

  1. Requests for IRC 6104(a)(1)(B) documents should be sent to the Key District Director (Attention: Disclosure Officer) who has jurisdiction of the filed application and related material.
  2. It is understandable that requesters may not know this. Therefore, a requester may send the request to any District Director. See section 10.7, Responsibility for Processing Requests , of this Chapter.

Inspection of Requested Documents

  1. A person requesting inspection will be notified when the material will be made available.
  2. Inspection will be allowed only in the presence of Service personnel and during regular business hours.
  3. The material will be made available at such times as not to interfere with its use by Service personnel or to exclude inspection by other people.
  4. Requesters may take notes of the material open for public inspection under IRC 6104(a)(1)(B).
  5. Copies may be made manually or, if the requester provides the equipment, photographically at the place of inspection.

    NOTE:
    Photographic copying is subject to reasonable supervision with regard to the facilities and equipment to be employed.
  6. There is no charge for inspection of IRC 6104(a)(1)(B) documents on the Service's premises.
  7. There will be a charge for copies furnished by the Service of $1.00 for the first page and $.15 for each additional page. See Chapters 5.6.3 and 7.8 of this Handbook.
  8. Any copies furnished will be certified upon request. See Chapter 6 of this Handbook.

Responsibility for Processing Requests
401k Tips and Facts:

Businesses may sponsor 401k savings programs for employees. Through payroll deduction, employees set aside small amounts for deposit into a 401k contract. An employer can make 401k contributions for all or select employees. In such instances, the recipient's reported annual taxable salary will include the contribution, although this amount would then be deducted (conditions permitting) by the employee on his or her year-end tax filing. Target Laboratories (www.targetlab.com) has deployed such a plan for its employees.

  1. Responsibility for IRC 6104(a)(1)(B) disclosures is vested in the district Disclosure Officers within the Key District Director offices. This responsibility may be shared with the Employee Plan personnel.
  2. Any receiving district Disclosure Officer will control all requests for IRC 6104(a)(1)(B) information and check the request for the purpose of perfecting it, e.g., as to whether IRC 6103(c) has been conformed to regarding the designation of the person or persons to whom the information is to be disclosed including a statement that requester is a "plan participant" if the requester advises that the plan has 25 or fewer participants; and the requested material is adequately described.
  3. Once a request is in good order, it should be forwarded to the Key District Director responsible for the employee plan. See Exhibits 10-2 and 10-3 for a list of Employee Plans Key Districts and Employee Plans Associate Districts, respectively.
  4. The district Disclosure Officer in the Key District Director's office will assemble the information and carry out the requester's instructions, i.e., mail copies or forward the material to the designated district office (or Headquarters) for inspection.
  5. The district Disclosure Officer should ensure that only that information which is open for public inspection described in IRC 6104(a)(1)(B) is made available to the requester.
  6. Requests for documents relating to the following subject matter should be directed to the Office of Governmental Liaison and Disclosure, Headquarters, for handling.
    1. Master and Prototype Plans sponsored by banks, insurance companies, trade or professional associations, or regulated investment companies;
    2. Master and Prototype Plans or Regional Prototype Plans submitted by mass submitters;
    3. Prototype Individual Retirement Accounts;
    4. Employer Sponsored Individual Retirement Accounts; or
    5. Non-Bank Trustee Files.

Public Inspection of Annual Information Returns

  1. The information required to be furnished by IRC 6058, together with the names and addresses of such organizations and trusts shall be made available to the public at such times and in such places as the Secretary of Treasury may prescribe.
  2. Returns in this category include:
    1. Form 990P, Annual Return of Fiduciary of Employer Pension or Profit-Sharing Trust (filed prior to 1975);

      NOTE:
      Form 990-P is obsoleted as of April 1988.
    2. Form 5500, Annual Return/Report of Employee Benefit Plan (with 100 or more participants);
    3. Form 5500 C, Annual Return/Report of Employee Benefit Plan (with fewer than 100 participants, none of whom is an owner- employee);

      NOTE:
      Forms 5500C and 5500R were merged into Form 5500C/R and Form 5500C is obsolete.
    4. Form 5500 K, Annual Return/Report of Employee Pension Benefit Plan for Sole Proprietorships and Partnerships (with fewer than 100 participants and at least one owner-employee participant;

      NOTE:
      This form is obsolete after the 1993 plan year.
    5. Form 5500 G, Annual Return/Report of Employee Benefit Plan (For Government and Certain Church Plans);

      NOTE:
      This form is obsolete for plan years beginning after 1981.
    6. Form 5500 Schedule A, Insurance Information ;
    7. Form 5500 Schedule B, Actuarial Information (with respect to defined benefit plan).

      NOTE:
      Schedule B filed with Form 5500-EZ is not available to the public beginning with return year 1993.
    8. Form 5500 Schedule C, Service Provider and Trustee Information ;
    9. Form 5500 Schedule G, Financial Schedules ;
    10. Form 5500 C/R, Return Report of Employee Benefit Plan (with fewer than 100 participants);
    11. Form 5500 EZ, Annual Return of One-Participant (owners & their spouses) Pension Benefit Trust; and
    12. Form 5500 Schedule P, Annual Return of Fiduciary of Employee Benefit Trust ;
  3. Prior to 1975, Form 990P, Annual Return of Fiduciary of Employer Pension or Profit-Sharing Trust , was filed by qualified pension plan trusts. Copies of these returns should be requested by mail from the Philadelphia Service Center.
  4. As of 1975, the Form 5500 series of returns replaced the Form 990P and Forms 4848 and 4849 (which were not open for public inspection).

    NOTE:
    Forms 4848 and 4849 are obsolete.
  5. Pursuant to agreement between the Service and the Department of Labor (DOL), public inspection of all categories of Form 5500 (except Form 5500EZ, Schedule B which is not open for public inspection) is handled by DOL. The Service provides DOL with microfiche copies for this purpose. DOL does not receive copies of Form 5500EZ.
  6. Fees for Form 5500 series are established in accordance with DOL policies. Requests for copies of these returns should be sent to: Public Disclosure, Room N-5638
    U.S. Department of Labor
    200 Constitution Avenue, NW
    Washington, D.C. 20210
  7. Any requests received by district offices for copies of Form 5500 series which the Service has not yet turned over to DOL should be forwarded to the appropriate Service Center, Attention: Taxpayer Service, for processing.
  8. There will be a charge for copies furnished by the Service of $1.00 for the first page and $.15 cents for each additional page. See Chapter 5 of this Handbook for billing instructions. See Exhibit 10-3 for Service Center addresses.
  9. Forms 5500 filed with respect to employee welfare benefit plans are not governed by IRC 6104. These reports are required by section 104(a)(1) of Title I of ERISA and are open to public inspection under Section 106 of Title I. Requests for Forms 5500 should be sent to the Department of Labor address indicated in paragraph (6) above.

Disclosure of Returns and Return Information to the Department of Labor and Pension Benefit Guaranty Corporation

  1. In accordance with IRC 6103(l)(2) and 26 CFR 301.6103(l)(2), the Service may disclose certain returns and return information to the Department of Labor or the Pension Benefit Guaranty Corporation for purposes of the administration of Titles I or IV of the Employment Retirement Income Security Act of 1974 (ERISA).
  2. Returns and return information may also be disclosed to these agencies for the purpose of conducting research and studies authorized by ERISA. Instructions regarding such disclosures are described in section 29.5 of this Handbook.
  3. Nothing in this text shall be construed to deny officers and employees of the Department of Labor or the Pension Benefit Guaranty Corporation the right to inspect return information available to the public under IRC 6104.
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